Benefit Association Railway Employees v. Hayden

• Decision Date: 28 November 1927
• Docket Number: 7
• Citation: 299 S.W. 995,175 Ark. 565
• Parties: BENEFIT ASSOCIATION RAILWAY EMPLOYEES v. HAYDEN
• Court: Arkansas Supreme Court

299 S.W. 995

BENEFIT ASSOCIATION RAILWAY EMPLOYEES v. HAYDEN

175 Ark. 565

No. 7

Supreme Court of Arkansas

November 28, 1927

Appeal from Craighead Circuit Court, Jonesboro District; W. W Bandy, Judge; affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

Basil Baker, for appellee.

OPINION

SMITH J.

The appellant insurance company issued its policy of insurance to Paul Trotter, a telegraph operator, insuring his life in the sum of $ 3,000, and appellee was designated as the beneficiary therein. This suit was brought by the beneficiary to recover on this policy, and the cause was submitted to the court below, sitting as a jury, on the following agreed statement of facts:

"We agree that Paul Trotter, the insured, was killed at Stuttgart, Arkansas, on October 17, 1926, in an airplane accident. The facts in relation to the accident or how it occurred are as follows:

"Richard Schillberg was operating an airplane at a rice carnival or rice fair, at Stuttgart, Arkansas, and was charging passengers $ 2.50 for each trip on which they rode with him. Some time during the day Paul Trotter took an airplane trip with Schillberg, riding as passenger, and paid the usual fee or fare therefor. Later in the day, as he stood near the airplane, Schillberg, the pilot of the airplane, in soliciting passengers for another trip, saw Paul Trotter, and asked him if he did not want to take another ride. On this occasion Paul Trotter accepted the invitation to become a passenger to ride for a second time, and the second flight was made. The second flight was upon the same condition of payment as the first flight, but it is not known by the parties whether the payment was made on either occasion before ascending or after alighting from the airplane. On the occasion of the second flight the pilot of the machine, Schillberg, attempted to perform some 'stunts,' and, in doing so, lost control of his machine, when perhaps not more than 300 feet from the ground, and the airplane fell, killing Trotter and seriously injuring Schillberg. Prior to the time of taking out insurance Paul Trotter had been on one or two 'plane' trips. The place or location where these trips were made, purpose or reason for taking them, or the conditions under which they were made, are not known to the parties executing this agreement."

The policy sued on contained this clause: "This policy does not cover disability or fatal injury received by the insured * * * (3) While engaged in aeronautics or underwater navigation," and the company denied liability by virtue of this clause.

At the trial from which this appeal comes the insurance company requested the court to find the fact to be that the insured received his fatal injury while engaged in aeronautics, and that death while so engaged was a risk not assumed, but expressly excepted, by the policy.

The court declined to make that finding, but, on the contrary, made the following finding.

"Finding of fact No. 1. The court finds that the occupation of Paul Trotter was that of telegraph operator, and that he received his fatal injury while riding in an aeroplane as a passenger; that riding as a passenger in an aeroplane does not constitute an exception or excepted risk under the terms of the policy of insurance sued upon, but the phrase 'engaged in aeronautics' implies that the risk excepted is for the insured to have taken part in the operation of the aeroplane as an occupation or otherwise, and that merely riding as a passenger therein does not come within the exception of the policy."

Upon this finding judgment was rendered against the insurance company for the amount of the policy, with penalty and attorney's fee, and the insurance company has appealed.

It is not questioned that the insured was killed while riding in an aeroplane, and the insurance company insists that the trial court should have declared that the insured was, at the time of his death, "engaged in aeronautics" within the meaning of the clause above quoted, and that there is no liability under the policy sued on. Cases are cited by appellant which fully sustain the contention.

Appellee insists, however, that the phrase, "engaged in aeronautics," should be strictly construed, as it constitutes an exemption from the general liability assumed by the company upon the issuance of the policy, and that it means active cooperation or taking part in the aeronautical enterprise resulting in the death of the insured.

Appellee contrasts the use of the words, "engaged in," quoted above, with language employed in § 5 of the policy, providing for double indemnity in certain cases, one of these being for an injury sustained by the insured "while riding as a passenger in a...